The terms and conditions of this agreement set forth U.S. Food Imports LLC’s (USFI) offer and apply to with respect to Vendor’s provision of goods and merchandise (Products) to USFI.
Non-Conforming or Unordered Products. USFI will have no obligation to accept or pay for any unordered Products or Products shipped that do not conform to, or comply with, the terms and conditions of any agreement to which these Terms and Conditions are attached.Shipment Constitutes Acceptance of Agreement. Shipment of Products by Vendor constitutes acceptance of these USFI Terms and Conditions and the terms and conditions set forth in any agreement to which these USFI Terms and Conditions attach, unless USFI has agreed to a change in writing prior to the shipment.
Representations, Warranties and Guarantees. By acceptance of USFI’s order, Vendor makes the following representations, warranties and guarantees:
The Products shipped, as of the date of shipment, comply with, and are not adulterated or misbranded within the meaning of, the Federal Food, Drug and Cosmetic Act (21 USC §§ 301), as amended, (“FDCA”), including, without limitation, the Food Additives Amendment as further amended, and Food Safety Modernization Act (FSMA) and are not adulterated or misbranded with the meaning of any states’ food and drug law; are not articles that may not be introduced into interstate commerce under emergency permit control requirements pursuant to 21 USC § 344, the Federal Hazardous Substances Act (“FHSA”), or otherwise; if meat and poultry products, comply with the Federal Meat Inspection Act and the Poultry Products Inspection Act; and furthermore comply with all other applicable federal, state and local laws, rules and regulations.
FDCA statutory guarantee: Vendor guarantees pursuant to 21 USC § 333 that the foods supplied to USFI are not adulterated or misbranded under the FDCA and are not articles which may not be introduced into interstate commerce under FDA emergency permit control requirements (21 USC § 344) or 21 USC § 331(a), (b), (c), (i), (k), (i).
Vendor is the lawful owner of the Products, has good right to sell same and convey good and merchantable title, and the Products are and will be conveyed free of any and all claims, liens, security interests or other encumbrances.
Payments Subject to Claims/Defenses. All amounts payable to Vendor will be subject to all claims and defense of USFI, whether arising from USFI’s purchase or any other transaction. USFI has the right to set off and deduct against any such amounts all present and future indebtednessof Vendor to USFI (which includes all of its affiliates) and may exercise this right up to three (3) years from the date of the last shipment by Vendor. Vendor will be deemed to have accepted each debit amount or Vendor chargeback within ninety (90) days following receipt of notice of same, unless Vendor notifies USFI in writing during such period as to why the deduction should not be made and provides sufficient documentation of the reason(s) given.
Force Majeure. Time is of the essence. However, USFI excuses Vendor from nonperformance or delays in delivery caused by acts of God, unforeseeable occurrences or other force majeure events, but Vendor agrees it is not excused by unexpected difficulty or commercial impracticality of any degree. USFI may cancel the unreceived portion of an order at any time if delivery of the goods is not timely. USFI reserves the right to reject any shipment of any order of goods from Vendor and shall have no obligation to pay for the rejected shipment in the event that USFI’s business or operations are discontinued in whole or part by reason of fire, flood, earthquake, war, civil disorder or any other act or event beyond USFI’s reasonable control.
Vendor will protect, defend, indemnify and hold harmless USFI, its subsidiaries and affiliates, and its and their directors, officers, employees, agents, contractors, successors and assigns from and against and all claims and actions (including those in strict liability), demands, liabilities, losses, costs and expenses (including attorney’s fees) including, without limitation, liabilities arising from any actual or alleged injury to or death of any person, damage to any property, and any other damage or loss, by whomsoever suffered, including Vendor’s or USFI’s agents or employees, resulting or claimed to result, directly or indirectly, from 1) the Products, or 2) Vendor’s actual or alleged breach of any of the representations, warranties, guarantees or other terms and conditions contained herein, except as to 1) and 2) above, if such liability is caused by the sole negligence or willful misconduct of USFI or its employees. In addition to the foregoing, if any of the Products purchased or any part thereof is alleged or held to constitute infringement, Vendor, at its own expense, will either (i) procure for USFI, its successors, assigns, and customers the right to continue using such Products, (ii) replace the Products with non-infringing items or (iii) only if options (i) and (ii) are impracticable, refund the purchase price for the Products and pay all related expenses.
Title and Risk: Shipment. Unless otherwise indicated on the USFI Purchase Order, title and risk of loss with respect to the Products will remain with Vendor until the Products have been delivered to and accepted by the U.S. retail or foodservice customer of USFI or Vendor, or an agent or consignee duly designated by such customer, at the location specified on the front hereof. A packing slip must accompany each shipment. If a shipment is to a consignee or agent of USFI, a copy of the packing slip must be forwarded concurrently to USFI. If no packing slip is sent, the count or weight reported by USFI or its agent or consignee will be final and binding upon Vendor with respect to such shipment.
